 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Keller v. Armstrong World Industries2/9/2005
ts. Such evidence is necessary to establish what a plaintiff 'should have known'; we cannot create such evidence if it is not in the record. In this case, defendants put no evidence into the record about what plaintiff would have learned had he inquired further."
___ Or App at ___ (slip op at 22).
Presumably, the majority derives the rule that it asserts in the above paragraph because summary judgment was reversed in Doe. However, the rulings in the cases relied on by the majority, when considered in the context of their facts, do not support the proposition that, before summary judgment is proper in this case, there must also be evidence that, had plaintiff inquired, he would have learned facts sufficient to support his claim against defendants. A comparison of the facts and rulings in each case with the facts in this case demonstrates the majority's error.
In Doe, an action was brought in 1990 against a blood bank and its former medical director on behalf of a recipient of a blood transfusion. The blood used in the transfusion contained human immunodeficiency virus (HIV). The threshold issue was when the plaintiff, in the exercise of reasonable diligence, should have inquired about defendants' alleged negligence. In 1987, plaintiff and the decedent learned that the blood used in the transfusion was infected. However, they made no inquiry whatsoever at that time about whether the defendants were negligent at the time that the blood was collected and used in the transfusion. The trial court granted summary judgment to the defendants on statute of limitations grounds under ORS 12.110(4). On appeal, the Supreme Court reversed. First, it held that the plaintiff's knowledge of the harm caused by the infected blood placed a duty on the plaintiff to make inquiry as to whether the defendants' negligence had caused the harm. 322 Or at 514. However, it held that the imposition of the duty to make further inquiry left open the issue of what the plaintiff would had learned, had he inquired. Id. at 515. That was because it was unknown from the summary judgment record what an inquiry in light of the state of medical science at that time with respect for testing for HIV and AIDS would have revealed. Id. The court explained:
"From the record that the parties made with respect to summary judgment, we conclude that plaintiff's knowledge in October 1978 of the harm caused to John Doe by HIV contaminated blood supplied by the Red Cross would have put plaintiff on inquiry notice of the existence of tortious conduct by defendants, as a matter of law. But the duty to inquire still left open the issue of what the Does would have learned had they inquired. That is, the existence of a duty to inquire does not foreclose the existence of a factual dispute concerning the question of what the Does would have learned. Application of the discovery rules 'knew or should have known' standard makes the issue of what the Does 'should have known' about the possibility of defendant's 'tortious conduct' an issue of material fact.
"Because no evidence was offered in connection with the motion for summary judgment that addressed the issue of what the Does would have learned had they made reasonable inquiry, the record does not permit an award of summary judgment to defendants."
Id.
In other words, the court in Doe held that, as a matter of law, the decedent was aware that he had been harmed by the infected blood that the defendants furnished to him. What remained as a factual issue was whether the defendants were negligent in furnishing him with infected blood in light of the state of the science of testing blood for HIV and AIDS at the time. Those holdings do not le
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Oregon Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|